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Eponia rumours: House Ban, Vienna and under-strength Boards

After a quiet summer, Merpel gets the feeling that the impending meeting of the EPO Administrative Council* (AC) on 14-15 October is causing a flurry of activity, which is giving rise to several rumours in relation to the Boards of Appeal.

House Ban update

Regular readers of this blog may recall that, 10 months ago, a member of the Boards of Appeal at the European Patent Office (EPO) was escorted from the premises of the Office on the instructions of the President. It was alleged that this Member was guilty of defamation, and in the rush for pitchforks Mr Battistelli apparently forgot that he had no power to discipline a Board Member.

Following interventions from the Enlarged Board, external national judges and many other quarters, the Administrative Council took the matter in hand, formally suspended the Board Member until 31 March 2015, and promised a speedy and thorough investigation of the matter. 'Speedy' means different things in Eponia than where Merpel lives, but six months after that March date it appears that there has been progress of a sort.

Among the items listed on the Agenda for the forthcoming AC meeting is this disciplinary case. The AC will review the allegations, then review the defence and response submitted by the person involved, and will then apparently review the decision of the Enlarged Board in this matter before coming to a decision.

This could mean what is says, i.e. that the AC will come to a disciplinary decision this month. However, watch this space, as Merpel has reason to suspect that the story will not come to a neat close, or at least not this month.

Oh Vienna!

If Vienna's too close,what about Columbia ...?

The EPO management has been seeking to reform the Boards of Appeal, and apparently a necessary part of this project is to get them out of Munich. The fact that the more senior members have family ties there, children in school and college, and may ultimately be forced to resign if there is a long-distance move, is neither here nor there (or is that the whole point?). Regardless, it was long understood that Mr Battistelli favoured sending the Boards to Berlin, but the little birdies hiding from Merpel in the trees along Erhardtstrasse are chirping that the new plan is to send the Boards to Vienna. Nice city to be sure, but it's a long commute after dropping the kids to school in Munich each morning. Merpel will keep you posted.Under-strength Boards

Conspicuously absent from the AC's agenda (since we are talking about the Boards of Appeal) is any signal that the Council is ready to make the long-overdue appointments required to bring the Boards up to full strength. The AC can only make such appointments on the proposal of the President, but Mr Battistelli has been uncharacteristically remiss** in this regard. It has been suggested that Board of Appeal members who are depending on reappointment might feel that they lack their former zeal if tempted to make a decision against the interests of the administration.

Unless the necessary appointments are made, Merpel understands that no fewer than seven chairperson positions will be vacant at the beginning of 2016, along with seven legal positions and thirteen technical positions.

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* Just making sure that you see the footnotes before you close the email or the page. As you were.

** Merpel's kidding, it's not uncharacteristic at all. For example, staff representative posts, which bizarrely depend on Mr Battistelli's imprimatur, have remained unfilled for months at a time even though substitutes had already been elected prior to a position opening. Those substitutes were standing by to attend crucial meetings, but were turned away from the door as not being properly accredited (by Mr. Battistelli, that is). Helpfully, Vice-President Topic who chaired the meetings, steamrolled any objections and carried on regardless, leaving staff in a minority when a vote on downgrading their health package was put to a committee designed to be balanced but engineered to give management an advantage. The absence of a staff rep from the crucial vote allowed Mr Battistelli to present his health reform to the AC as having been "properly approved" when in fact the vote lacked credibility. Fortunately the AC proved to be a vigilant watchdog, scrupulously looking out for the interests of the staff under its care ***.

*** Merpel's kidding again. Despite having been informed of the flawed vote, the AC nodded it through, like always. In fairness, at recent meetings the level of dissent has increased and some delegations have shown some backbone. Time will tell if this is a trend that will grow sufficiently to restore the AC's independence and credibility as a governing body.

30 comments:

BB's actions, and the Lack of them clEarly show that the BoA are not independent. The fact that it proved impossible to issue a business distribution scheme for the whole of 2015 plus the refusal to propose new members to the extent that soon one board will no longer be able to ac, are an unacceptable intervention in the running of the supposedly independent boards. The AC is apparently not aware of this illegal situation, or thy don't care. Because there is no sanction when the AC or the president contravene the EPC. The present situation is a huge mistake in the EPC.

The fact that there are no reappointments is a sign that the BoA will be relocated. New members of the BoA will be hired for a new location, respectively, costs on the relocation of the BoA will be minimal.

The procedure for recruiting Board members requires roughly one year. Therefore, even if the Council were willing and able to induce the President to start new appointment proceedings there would be no new appointments throughout 2016. This shows that pendency times of appeals are not the President's concern. The users will have to pay the bill. The policy of not appointing new members and not even prolonging members over the age of 65 at their request started immediately after R 19/12. It perfectly illustrates the dependency of the Boards from the President. Board members willing to render decisions which might not please the administration need a solid backbone. Preferably they should not have a family to nourish.

"It has been suggested that Board of Appeal members who are depending on reappointment might feel that they lack their former zeal if tempted to make a decision against the interests of the administration."

Has it now?By whom?Or, is this just tabloid journalism speak? Sounds like it. Cheap.

The Boards in Vienna?Who cares about the EPC.The Boards are still a part of the EPO which has its seat in Munich and a branch at The Hague with a sub-office in Berlin. In Vienna there is only a sub-Office "for the purpose of information and liaison" (Art. 7 EPC). Certainly, the Boards dont fit under this heading.The Boards in Berlin? The sub-Office in Berlin "shall operate under the direction of the branch at the Hague" (Protocol on Centralisation Section I(3)(a). Another level of dependency for the Boards,a proof of the high estimation for the Boards or simply another proof of the fact that the law is not a major obstacle for true managers.

Spinning wool says:Sending the boards to Vienna does not make them any less dependent either. BB cannot be so naive as to think that by having the boards somewhere else everybody will now believe in their independence, despite the EPC which so blatantly does not guarantee the independence of the boards.

Why should a relocation of the BoA to Vienna render them independent? The EPO is seated in Vienna as well - such as in Munich and Den Haag. So where is the advantage?

Obviously, this proposal is intended just to bother the BoA members and BoA employees.

It is necessary to make the BoA really independent from the EPO. A relocation of the BoA is not necessary to achieve this goal.

However, it will be necessary to make the BoA not only administratively independent from the EPO but also financially independent.

Therefore, probably the appeal fees will need to be increased significantly in order to finance the appeal system. Hopefully the users of the EPO system will agree to such increase. This will become possible only if the EPO users are aware of the present catastrophic situation.

If you sit in Paris and want quickly to run the UPC up to speed you might come to the idea that running down the EPO's judicial resources (DG3) in Munich would be quite a help to your strategic objectives. And your man is on the spot in Munich and only too happy to oblige.

Are DG3 members soon going to be presented with the choice between banishment to the East or an attractive new post within the UPC system?

Mr Battistelli's plan:Get rid of the present VP 3, Introduce "his" reform of the Boards of Appeal;Install there his choice of new VP3. The new chapter in the EPOsaga: "Taming the boards"The present VP3, Mr Van der Eijk, is on unlimited sick leave and thus out of function. Nervous breakdown? Most likely.

VP3: “There is still one of which you never speak.'BB bowed his head.'Venice,' VP3 said.BB smiled. 'What else do you believe I have been talking to you about, since I returned from Italy?'VP3 did not turn a hair. 'And yet I have never heard you mention that name.'And BB said: 'Every time I describe a city I am saying something about Venice.”

According to what I have heard from multiple sources the move of DG3 is not for reasons of independence, but simply retaliation for having angered the top management, mainly by R19/12 and refusal of the enlarged board to agree to the dismissal of the DG3 member under investigation.

Still it is not clear what are the long term plans as a move would lead to mass resignations from DG3, replacing DG3 with the UPC appears to be impossible without a diplomatic conference?

Also quite obviously the german delegation in the AC would be strongly against weakening Munich as Europe's patent capital, so all those plans might go nowhere as the other delegations will be very reluctant to outvote Germany in that matter.

The top priorities are this:1. Kick the BoAs out of their current building (because shared with the President) even if that means moving them together with the examiners (which has been looked into). Rationality has nothing to do with it.2. It may not cost anything.

So the BoAs are up for sale. Any country or city willing to place a bid?

Legality is not a criterion (or Warsaw, Riga, Venice and Vienna would never have been on the table), so even non-EPC states may apply. Do I hear Qatar?

The Administrative Council is very well aware of what is happening. So don't worry, the big countries will make sure to get some statement of concern in the minutes.

@ Storming the Bastille:Is it a coincidence that it is French managers again who are attacked? One might have a look where the top Air France managers come from. I 'd not be surprised if they graduated from the ENA, same as the management of France Telecom some years ago, when the suicide rate soared. Sounds familiar? What are people taught in that school, one wonders? Certainly not democratic principles and respect for the law. Certainly no knowledge of sound management principles. Certainly no respect for highly trained and experienced professionals. Now I understand why BB has bodyguards. One day, one of the desperate employees might not turn to suicide but to other means to solve his problems. What a world!

The comments of Parisianne and Gigi are really beside the point. The issue here is not whether or not the members of the boards will find another job (as they will undoubtely do if they choose to leave the EPO in case of a transfer). Rather the point is how to prevent that a department that is arguaby the best functioning of the EPO and is which essential to the system (unless you don´t feel the need of a review instance) is dismantled just to satisfy the over-inflated ego of a single person.

Rather the point is how to prevent that a department that is arguaby the best functioning of the EPO and is which essential to the system ... is dismantled just to satisfy the over-inflated ego of a single person.

This is a trifle unfair. Notwithstanding the fact that there may be one oversized ego directing operations, he is not operating on his own. He appears to have a whole cabal in tow including VP4 and VP5 as well as the Chairman of the AC. And possibly even VP3 as well - at least until he called in sick.

They are all grown-ups who are morally responsible for their own actions.

However, tempting it may be, I don't think that everything should be blamed on the over-inflated ego of a single person. A number of people are clearly acting in concert here.

In relation to this sad story I have mentioned before the very analytical book by Peter Drahos: "The Global Governance of Knowledge: Patent Offices and their Clients", Cambridge 2010. My impression of his teaching is that he considers certain users of patent offices to be much more like clients, rather than applicants who want an official recognition of their legitimate claims to society of a time-limited power to prevent certain actions. These clients use the perceived risk of infringement as a means to control the competition and to extract money by what he considers a form of taxation.

In this world there is indeed competition between the patent offices, both as sub-suppliers (performing examination) to minor, in many cases overseas, patent offices and, in the case of EPO, the national offices of the member countries. The big clients are the transnational corporations who can live very well with legal uncertainty. By reducing the quality of examination and of appeal these clients have the maximum gain of the patent system.

Sadly, all of my comments dated Saturday, 27 June 2015 at 11:13:00 BST and 11:14:00 on the blog post "Council of Europe focuses on Eponia, and there's more to come" seem to be as relevant as they were then.

It seems the concept of a patent law for the advancement of society as a whole has outlived itself. The incentive is no longer to promote improved and competing solutions to society's technical problems but only unfertile financial gain obtained either via term prolongation of old patents or the undefined threats of patent applications or insufficiently examined issued patents. These are games that SMEs cannot play. But the latter games are eminently suited to be played at the UPC.

**** Merpel's kidding again. Showing backbone apparently means something else than saying no.The German government on request stated that they knew about the legally questionable proposals and has therefore, together with a few other states abstained in the vote.

The Convention Watchdog (Mo 5 Oct 12:12) "simply another proof of the fact that the law is not a major obstacle for true managers." - a certain scandal from the automobile industry jumps to my mind.(but thanks for the analysis - the office does need to start preparations for a diplomatic conference - it is overdue... (Article 4a EPC: "A conference [...] shall meet at least every five years to discuss issues [...].")The BoA would be a perfect reason to do this, yet the current administration seems to want to avoid involving persons who live for democracy and/or may be supervised by the large press at all costs.

**** Merpel's kidding again. Showing backbone apparently means something else than saying no.The German government on request stated that they knew about the legally questionable proposals and has therefore, together with a few other states abstained in the vote.

Ah yes, the courageous "abstainers".

However, according to Article 35(4) EPC, "abstentions shall not be considered as votes". http://www.epo.org/law-practice/legal-texts/html/epc/2013/e/ar35.html

Thus, according to the official record the measure was approved "unanimously".

What if the Enlarged Board says "We can see nothing which would warrant removal from office of the accused Board of Appeal member. Under Article 23(1) EPC, we are unable to propose any other action." ? [*]

What if the President says "OK, in that case I can propose disciplinary action under Article 10(h) EPC":

[The President] ".... may propose disciplinary action to the Administrative Council with regards to employees referred to in Article 11, paragraphs 2 and 3" (which includes members of the Boards of Appeal).

What if the President proposes indefinite suspension (but not outright removal from office)? Perhaps indefinite suspension without pay?

What should the Administrative Council do?

Such conflicts highlight the point made by CIPA and many others. While an interim short term solution is essential, in the long term the only way to remove these conflicts and ensure the independence of the Boards of Appeal is to amend the EPC.

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[*] There are several ways the Enlarged Board could reach such a conclusion:

- They could find that the accused member has done nothing wrong.

- Or that it was wrong, but not so serious as to warrant dismissal.

- Or that it would be wrong if proven by good evidence. But that the only evidence is not admissible because it was obtained illegally, by surreptitious surveillance of a public computer intended for use by attorneys.

Or, of course, they could find that the accused Board of Appeal member is guilty, and propose removal from office.

Or VP3 could fall ill, either out of diplomatic convenience, or because of the sheer pressure/harassment to which he might be submitted, and avoid taking any decisions.

But hey, that's only an hypothesis. There never was any sort bullying, mobbing, harassment at the EPO, and never will be. Our enlightened and humanistic management could never be capable of such behaviour, and any suggestion of the necessity of oversight or accountability is a slight to their honour.

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